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November 25, 2009

In Caballero v. Benjamin, the Appellate Division, Second Department held that the plaintiff injured worker established prima facie that the owner and general contractor were liable under Labor Law sec. 240(1). A wheel on the scaffold upon which the plaintiff was working fell into a hole, causing him to fall. The Court reasoned that the violation of sec. 240 was the proximate cause of the accident and, therefore, the plaintiff's conduct (not discussed in the decision) could not be the sole proximate cause.

The Court also held that the subcontractor was not liable under sec. 240(1) because the evidence established that the subcontractor did not have supervisory control over the work or did not have the authority to insist that proper safety measure were followed.

Also, the Court held that the owner and general contractor established their entitlement to judgment as a matter of law on their contractual indemnification claim against the subcontractor. The noted that, "[a]though 'an indemnification agreement that purports to indemnify a party for its own negligence is void under General Oblications Law sec. 5-322.1, such an agreement does not violate the General Obligations Law if it authorizes indemnification to the fullest extent permitted by law."

November 24, 2009

In Biddy v. Vanmaltke, the Appellate Division, Second Department held that the defendant driver was not liable regarding a collision of the plaintiff's truck or the one in which the plaintiff was rear-ended by another tractor trailer. The accident unfolded as follows: The defendant Vanmaltke was driving a minivan in the right lane of the eastbound roadway of the Cross Bronx Expressway, when his car was cut off by a Lincoln Town Car. Defendant Vanmaltke testified at a deposition that he steered to the left to avoid the Town Car and, in doing so, he contacted a tractor trailer being driven in the center lane by the plaintiff Leon Biddy. This caused the tractor trailer to veer into the left lane and strike the vehicle that the appellant was driving. The appellant was driving straight in the left lane. As the plaintiff Biddy was attempting to stop his truck, he was rear-ended by a tractor trailer.

The Court held: "The evidence presented by the appellants on their motion for summary judgment, including the deposition transcripts of the parties and the police accident report, established, prima facie, that the appellant was not at fault in the happening of the accident and, therefore, could not bear an culpability for the plaintiff's injuries . . . . There is no proof that the appellant operated his vehicle improperly or engaged in any conduct which helped bring about either the collision between his motor vehicle and the plaintiff's truck or the subsequent rear-end collision involving the two trucks. Moreover, the appellant was 'in no position to take any steps to either reasonably foresee or avoid' the collision between his automobile and the plaintiff's truck."

November 23, 2009

The Appellate Division, Third Department in Albarado v. Dillon recently addressed one of the defendant's claims of juror confusion. The appeal concerned a three-car accident stemming from the defendant State Trooper's high-speed chase. The other defendant was stopped on the same route, attempting to make a left-hand turn. In attempting to avoid the defendant stopped in front of him, the defendant State Trooper first collided with the plaintiff Flood's vehicle and then, as the patrol car rolled over, with the plaintiff Alvarado's vehicle.

The appeal concerned plaintiff Alvarado's action against the State Trooper, the other defendant, and the plaintiff Flood. A jury found the State Trooper liable to the plaintiff Alvarado and the plaintiff Flood; it found the other plaintiff not liable.

The State Trooper contended that the jury charge at trial to determine liability regarding the standard of care owed by him (as an on-duty police officer) was confusing and warranted a new trial. The Third Department rejected the argument that the trial court should have given a more complete instruction.

The Court held: "While the statutory language may be confusing standing alone . . ., the court did not rely solely on the statute in its charge to the jury. After reading the statute, the court went on to give a charge that closely mirrored Pattern Jury Instruction 2:79a and, on multiple occasions during its charge, referenced the fact that [the defendant State Trooper and the other defendant] were to be judged by different standards . . . . Additionally, the verdict sheet very clearly indicated these differing standards. Furthermore, there is no tangible evidence that the jury was confused in this cse as it did not request a clarification on the instructions are.

The Court also addressed interesting points on review of unpreserved issues of fundamental error and costs of litigation under the CPLR.